What Wetlands Are Regulated? Jurisdiction of the §404 Program

AuthorMargaret 'Peggy' Strand/Lowell Rothschild
Page 11
Chapter 2
What Wetlands Are Regulated?
Jurisdiction of the §404 Program
I. CWA Wetlands and Waters of the United States
Wetlands or other waters that are subject to federal control are referred to as “jurisdictional waters” because
they are within the regulatory jurisd iction of federal law. e CWA regulations provide a set of denitions
identifying physical standards used to determine what geographic features qualify as wetlands. ese stan-
dards allow delineation of what is physically and biologically considered a wetland. ere are also standards
for determining the boundaries of other waters, such as streams and rivers. e physical standards—do you
have a wetland—are addressed rst in this chapter.
Even if a wet land is id entif ied using the delineation sta ndards, it may not be regula ted under
the CWA because of legal stand ards addressing federa l jur isdiction. A se parate set of d efinition s
and legal standard s is u sed to decide whether a ny speci fic feature fa lls un der federal lega l jurisdic-
tion as discus sed below. The lega l jurisdic tion— whether federa l law r egulates those physical fea-
ture s define d as wetl ands —has pre sented some of the most cha llenging issues, as reflected in recent
Supreme Cour t decisions.
e CWA does not dene wetlands or even mention wetlands within the context of the permit and
regulatory program. Rather, all of the rules and criteria for determining wetlands jurisdiction are found
in regulations and in other polic y guidance. ese ru les are built from the CWA terms “navigable waters”
and “waters of the United States,” which are t he source of CWA jurisdiction. As the legal interpretations
have changed, the types of geographic or landscape features treated as wetlands subject to regulation under
the CWA have cha nged over the course of the years. e geographic reach of CWA jurisdiction remains
under active review by the agencies and the courts. Indeed, as t his Deskbook was going to press, proposed
changes to the regulatory denition of “waters of the United States” had been released for public comment
and were under review by the agencies.
e denition involves several provisions of the statute and the regu lations. e CWA operates by pro-
hibiting the “discha rge of any pollutant by any person.”1 e phrase “discharge of a pollutant” is dened,
in pertinent part, as “any addition of any pollutant to navigable waters from any point source.”2 e stat-
ute denes the key phrase “navigable waters” as “the waters of the United States, including the territorial
seas.”3 Congress left it to the Corps and EPA to provide a regulatory denition for the term “waters of the
United States,” which would determine the limits of CWA jurisdiction. As discussed more fully below, the
Supreme Court, despite a serious split on these issues, has held that “waters of the United States” is limited
by its relationship to the phra se “navigable waters.” e result has been an almost continuous eort to
determine the geographic limits to federa l wetlands jurisdiction. e precise extent of such limits remains
uncertain, and will be established in regulatory practice and case law over the coming years. Congress has
considered, but not yet passed, amendments to the CWA to address this issue.
1. 33 U.S.C. §1311(a), ELR Stat. FWPCA §301(a).
2. 33 U.S.C. §1362(12), ELR S. FWPCA §502(l2).
3. 33 U.S.C. §1362(7), ELR S. FWPCA §502(7).
Page 12 Wetlands Deskbook, 4th Edition
Wetland del ineation and jurisdiction are governed by regulations and by guidance documents. e
jurisdictional regulations have been largely uncha nged since the 1986. e Corps originally approached
its jurisdiction under §404 in the same ma nner that it reg ulates pursuant to the R ivers and Harbors Act
(RHA). Under the RHA, the Corps regu lates activities in traditionally navigable waters.4 Traditionally
navigable waters are waters subject to the ebb and ow of the tide and/or waters that are, or have been, used
to transport interstate or foreign commerce.5 Tidal ats, subject to regular tidal ow, are considered to lie
under traditionally navigable waters, and thus are subject to the RH A.6 RH A jurisdiction also extends to
the areas where a river customarily ows in its nat ural meanders.7
e initial Corps regulations under §404 extended coverage to the navigable waters, as did the RHA.8
Since wetlands are generally non-navigable, this early denition excluded most wetlands and other isolated
or sha llow waters from CWA jurisdiction. Environmental groups challenged these regu lations, arguing
that the regulatory jurisdiction of the CWA extended beyond traditionally navigable waters to a broader
aquatic system, including small streams, tributaries, and wetla nds. e issue was rst addressed in Natural
Resources Defense Council v. Callaway,9 where the Corps’ regulations were inva lidated on the grounds that
they applied the CWA too narrowly. As a result, the Corps revised its regulations to include a broader range
of waters, including adjacent wetlands and isolated waters. e Corps followed the instruction of the court
and relied on the CWA’s legislative history, which indicated that Congress intended the phrase “navigable
waters” to be given the broadest constitutional interpretation.10
e current, as of 2014, Corps and EPA regulations dene “waters of the United States” to include:
• all traditionally navigable waters;
• all waters, including wet lands, t he use, degradation, or destruction of which could aect inter-
state c ommerce;
• the territorial seas; and
• wetlands adjacent to, and tributaries and impoundments of, other waters within the denition.11
e scope of these regulations, as impacted by Supreme Court decisions, is addressed more fully below.
Also discussed is the increasing emphasis the Corps and EPA have placed on determining the reach of each
riverine system upstream of a t raditionally navigable water when determining their jurisdictional author-
ity. And the proposed regu lations redening waters of the United States a re also described, although this
Deskbook was published before nal action on the proposal was taken.
e delineation regulations, dening the aquatic features that are wetlands under the CWA, have also
remained uncha nged since t he 1980s. Unlike the jurisdictional reg ulations, however, there have been no
cases raising quest ions over the scope and propriety of the regulatory denition of a wetland.
Under the §404 program, regu lated parties a re initially responsible for determining whether they have
wetlands under the CWA’s jurisdiction. e following sections provide more information on (i) the process
for obtaining such wet lands determinations; (ii) the criteria for establishing wetlands; and (iii) the factors
that aect whether wetlands fal l within CWA jurisdiction. As a practical matter, CWA jurisdiction over
wetland jurisdiction begins with a eld delineation that is based on hydrologic, vegetative, a nd soils char-
acteristics. Af ter features are delineated, using the resources and procedures described below in Section II,
there is a separate analysis to determine whet her the feature is within CWA jurisdiction. As su mmarized
above, this area of the law has been ver y active and remains controversial.
4. See 33 C.F.R. pt. 329.
5. 33 C.F.R. §329.4; see also infra Section II.C.l.a. (addressing 2008 EPA guidance indicating the Agency’s position that waters susceptible to
future commercial use are also “traditionally navigable”).
6. See Buttrey v. United States, 573 F. Supp. 283, 298, 14 ELR 20152 (E.D. La. 1983); P.E.Z. Properties v. Train, 393 F. Supp. 1370, 1380, 1382
(D.D.C. 1975).
7. See United States v. Sunset Cove, Inc., 3 ELR 20370 (D. Or. 1973), a’d in part and remanded on other grounds, 514 F.2d 1089, 5 ELR 20407
(9th Cir. 1975); United States v. Zanger, 767 F. Supp. 1030, 22 ELR 20231 (N.D. Cal. 1991).
8. See 42 Fed. Reg. 37122 (1977).
9. 392 F. Supp. 685, 5 ELR 20285 (D.D.C. 1975).
10. See 42 Fed. Reg. at 37127.
What Wetlands Are Regulated? Page 13
II. Physical Def‌inition of Wetlands and Waters of the United States
Since wetlands often occur as a transitional zone between uplands (dry land) and open waters, there is a
need to dene the boundaries of wetlands a nd other waters that may be reg ulated under the CWA. Iden-
tifying the physical features that are characteristic of a wetland involves application of a denition that
appears in both Corps and EPA regulations, dening wetlands as:
[A]reas that are inundated or saturated by surf ace or ground water at a frequency and duration sucient to
support, and that under normal circumsta nces do support, a prevalence of vegetation typical ly adapted for life
in saturated soil conditions . Wetlands generally include s wamps, marshes, bogs, and simila r areas.12
is denition is referred to as a “three parameter” test, under which wetlands are characterized by
hydrology (water at or near the surface for a sucient time), hydrophytic vegetation (plants adapted to
saturated soils), and hydric soils (specied soils and conditions). ese three parameters are exhibited on
the ground in myriad physical circumst ances. A wetland, under CWA standards, must exhibit all three of
these characteristics. Locating the boundaries of a wetland on the ground is called wetland delineation.
e regulatory denition of a wetland omits many details. For example, it does not specify how long an
area must be saturated or inundated, how a prevalence of wetland vegetation is measured, or which k inds
of soils can support a wetland ecosystem. To ll in t hese interstices, the federa l agencies have developed a
wetland delineation manual.13 e manual is not designed to be used by laypersons, and consultation with
properly trained experts is recommended.
Neither the regulations nor the delineation manual dene how to determine the boundaries of “other
waters,” such as streams and rivers. Rather, the Corps denition for t he “limits of jurisdiction” provides
that “[i]n the absence of adjacent wetlands, the jurisdiction extends to the ordinary high watermark.”14 e
“ordinary high watermark” is also dened15 and, as a general rule, is not measured by unusual storm events.
While this section addresses physical denitions and features used to identify waters of the United
States, determining legal jurisdiction over those waters can also involve an additional evaluation of physical
factors, as addressed more ful ly in Section III, below.
A. Identifying Wetlands Using the 1987 Corps Delineation Manual and the Regional
Since 1993, EPA and the Corps have both used the 1987 Corps Manual for wetlands delineation.16 While
this 1987 Manua l provides many procedures of uniform application, wetla nds characteristics can vary
across the nation. In 2002, the Corps initiated a process of “regionalization” of wet land delineation pro-
tocols across the countr y.17 e 10 planned Regional Supplements, covering the United States, were com-
pleted in 2012.18 ese Regional Supplements provide specic criteria for wetland delineation (e.g., depth
and duration of groundwater measurements) for use in their part icular regions. To the extent that these
dier from the 1987 Manual, the Regional Supplement will be followed. As a practical matter, delineation
of wetlands will have to follow the Corps Ma nual and the appropriate Regional Supplement.
13. Vcl. Lab.  D’   A, T R Y-87-1, C  E W D M (1987).
14. 33 C.F.R. §328.4(c)(1) (2008).
15. 33 C.F.R. §328.3(e) (2008) (noting that the term “ordinary high watermark” “means that line on the shore established by the uctuations of
water and indicated by physical characters such as clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction
of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas”).
16. 58 Fed. Reg. 4995 (Jan. 19, 1993). is announcement ended a long period of controversy over wetland delineation manuals and practices.
After the Corps, EPA and other agencies had presented a new Joint Delineation Manual for use in 1989, there was a signicant controversy
over which delineation manual to use. Many observers felt that the 1989 Manual changed delineation standards signicantly. In an eort to
reduce the controversy, Congress authorized the National Academies of Sciences (NAS) to evaluate the science of wetland delineation. See
Departments of Veterans Aairrs and Housing and Urban Development and Independent Agencies Appropriations Act of 1993, Pub. L. No.
102-389, 106 Stat. 1571 (1992). By the time the NAS released its report in 1995 (see infra note 144), the agencies had withdrawn the 1989
Joint Manual and were using the 1987 Corps Manual.
17. U.S. A C  E’, D  “R” V   C  E W D M: I
 R (2002), available at http://www.usace.army.mil/Portals/2/docs/civilworks/regulatory/reg_supp/dev_reg_wetlands.pdf.
18. See http://www.usace.army.mil/missions/civilworks/regulatoryprogramandpermits/reg_supp.aspx (last visited Nov. 19, 2012).

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